HIGH COURT OF LESOTHO
by the Honourable Mr. Justice B.K. Molai on 20th day of March 2002
appellant stood trial in the Subordinate Court of the Chief
Magistrate, here in Maseru, on a charge of rape, it being alleged
that upon or about the 19th day of August 2000 and at or near
Lithabaneng, in the district of Maseru, he unlawfully and
intentionally had sexual intercourse with Neo Ralesalla, a girl aged
14 years, without her consent.
was explained and put to him, the accused pleaded guilty to the
charge. He was found guilty as charged and a sentence of 12 years
imprisonment, without an option of a fine, imposed.
(and these were admitted as correct), disclosed by the prosecutor in
the outline of the evidence in his possession, were that the
complainant lived here in Maseru with her aunt, Mathari Makhabane,
who was the appellant's lover. At about 5:00p.m. on the day, in
question, 19th August 2000, Mathari Makhabane sent the complainant to
deliver a certain message to the appellant at his place,
Borokhoaneng, here in Maseru. The complainant obliged. After she had
delivered the message to him, the complainant was requested by the
appellant to make tea for him. She did make the tea as requested by
the appellant. Thereafter the complainant wanted to leave the place
and return home but the appellant grabbed and threw her on a
mattress. He stripped the complainant of her panties and forcibly had
sexual intercourse with her, without her consent. The appellant
detained the complainant at his house where he had sexual intercourse
with her the whole night, without her consent.
complainant did not return home on the evening of 19th August 2000,
Mathari Makhabane looked for her but all in vain. At about 10:00a.m
on the following day, she met the complainant in the company of the
appellant who explained that they were returning from a place called
Phamong and he was taking the complainant home. However, when she was
asked where she had been, the complainant explained that the
appellant had forcibly had sexual intercourse with her the whole
night without her consent.
following day, 21st August 2000, the incident was reported to the
police who immediately mounted investigations. The complainant was
referred to a medical doctor who examined her and compiled a report.
According to the medical report which was handed in as exh "A",
the examination of the complainant's vagina was painful and allowed
two fingers. Her panties were stained with white discharge. Her hymen
was ruptured and penetration had definitely taken place.
above stated evidence the appellant was convicted and sentenced as
aforesaid. The appellant has not appealed against the conviction and
rightly so, in my view, as there is simply overwhelming evidence,
which he himself admitted, that he had, indeed, had sexual
intercourse with the complainant, a young girl of about 14 years old
without her consent and, therefore, committed the crime of rape. The
appeal is only against sentence, on the grounds that it is excessive
and raises a sense of shock.
trite law that sentence is pre-eminently a matter for the discretion
of the trial court. This court, sitting as appellate court, will not,
therefore, lightly interfere with the sentence imposed by the trial
court, unless, of course, it can be shown that in sentencing the
appellant, as it did, the trial court misdirected itself or that the
sentence was so excessive that it raised a sense of shock. (R v.
Mapumulo and others 1920 AD 56 and 57; S v. Anderson 1964 (3) S.A.
494 and 495).
It is to
be borne in mind that the appellant was sentenced by the Subordinate
Court of the Chief Magistrate. Paragraph (a) of subsection (1) of
section 61 of the Subordinate Courts Act, 1988 (as amended) empowered
the trial court to impose a sentence of a fine not exceeding M40,000
or, in default of payment of the fine, to serve a term of
imprisonment not exceeding 20 years. Indeed, if it were of the
opinion that greater punishment than it had power to inflict, for the
offence, ought to be inflicted, the trial court could, under the
powers vested with it by section 293 (1) of the Criminal Procedure
and Evidence Act, 1981, have
committed the appellant for sentence by the High Court where he might
have faced a death penalty, in terms of the provisions of section 297
(l)(b) of the Criminal Procedure and Evidence Act, Supra. The trial
court was invited to consider a number of factors, in mitigation of
punishment. It did take into account those factors in assessing what
punishment would be appropriate for the appellant. Consequently, I am
unable to find that in sentencing the appellant, as it did, the trial
court, in any way, misdirected itself.
argued, on behalf of the appellant, that there was no evidence
indicating that the complainant had seriously been assaulted, as it
normally happened in cases of this nature. A sentence of 12 years
imprisonment imposed by the trial court was, in the circumstances,
not only excessive but raised a sense of shock.
outlined and, indeed, accepted as correct by the prosecutor and the
appellant, respectively, the evidence showed that the appellant, a 32
years old man who was married and had children, grabbed, threw the
complainant on the mattress and carnally ravaged her by force
throughout the whole night. That, in my view, was a serious assault
on the complainant who was but a child of only 14 years old. In his
reasons for sentence, the learned trial magistrate had, inter alia,
this to say on the issue:
" I cannot loose sight of the fact that rape is itself a heinous
crime, and in this case the offence is aggravated by the fact that
the complainant is a child of tender years who has been deflowered by
the accused, and the trauma caused on her by the incident is likely
to have a lasting effect."
the trial court's view. The argument does not persuade me and it will
not, therefore, be proper for this court to interfere with the
sentence imposed by the trial court.
result, I come to the conclusion that this appeal has no merits and
ought not to succeed. It is accordingly dismissed.
Appellant : Mr. Teele
Respondent : Ms. Maqutu
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